[Cite as State v. Anderson,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102427

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MARLO A. ANDERSON DEFENDANT-APPELLANT

DECISION EN BANC: AFFIRMED IN PART, VACATED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-585997-A

BEFORE: The En Banc Court

RELEASED AND JOURNALIZED: September 29, 2016 ATTORNEY FOR APPELLANT

Thomas A. Rein 820 West Superior Avenue Suite 800 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: John Patrick Colan Anthony Thomas Miranda Frank Romeo Zeleznikar Assistant Prosecuting Attorneys Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:

{¶1} There is arguably nothing more unassailable than the trial court’s discretion

to fashion final sentences. Any legislative or legal decision seen as limiting that

discretion will arouse passionate debate.1 Nevertheless, as an intermediate appellate

court, we must constrain ourselves to the questions of law, and apply not only the

statutory language as written but also the clear precedent of the Ohio Supreme Court. In

this case, the trial court imposed a sentence beyond that which it was authorized to

impose, and therefore, we must reverse. We are not so much limiting a trial court’s

sentencing authority as we are recognizing the boundaries of the legislative grant of

discretion.

{¶2} The trial judge wanted to maintain personal supervision over Marlo Anderson

after his release from prison for the apparent and noble purpose of ensuring Anderson

would stay on a path to rehabilitation. This resulted in the dual imposition of postprison

supervision by two separate entities and will result in the unnecessary fiscal burden

imposed on two state agencies charged with the same task. This goal of allowing the

court to set the appropriate sanctions and conditions on offenders leaving prison could

have been accomplished in an authorized manner through the procedures outlined under

R.C. 2967.29, which provides a method for the court of common pleas to cooperate with

1Mary Beth Lane, The Columbus Dispatch, Judges are offended by new law on sentencing (Mar. 4, 2012); http://www.dispatch.com/content/stories/local/2012/03/04/ judges-are-offended-by-new-law-on-sentencing.html (accessed June 6, 2016) (article explained, from trial court judges’ perspective, how application of a new statute granting an executive agency certain authority in sentencing co-opted judicial discretion). the Department of Rehabilitation and Correction in supervising offenders. R.C.

2967.29(B)(4). The court, after consultation with the board of county commissioners,

could enter into an agreement with the department of corrections allowing the court and

the parole board to make joint decisions relating to parole and postrelease control to the

extent permitted by section 2967.28 of the Revised Code. If such an agreement was in

place in Cuyahoga County, there would have been no need for the dual imposition of

postprison monitoring because the trial court could cooperate in structuring the guidelines

of the defendant’s postprison monitoring. R.C. 2967.29(B)(6).

{¶3} Pursuant to App.R. 26, Loc.App.R. 26, and McFadden v. Cleveland State

Univ.,

,

,

, this court determined that a

conflict existed between the original panel majority decision in State v. Anderson, 8th

Dist. Cuyahoga No. 102427,

, and State v. Heidrick, 8th Dist. Cuyahoga

. Although our original panel decision in Anderson,

, was not the first to question prior decisions allowing the imposition of

consecutive community control sanctions, it is nonetheless the vehicle chosen to resolve

our intradistrict differences. State v. Abernathy, 8th Dist. Cuyahoga No. 102716,

, ¶ 8-10 (trial court is not authorized to impose consecutive community

control jail terms); see also State v. Dansby-East, 8th Dist. Cuyahoga Nos. 102656,

102657, 102658, and 102659,

; State v. Peterson, 8th Dist. Cuyahoga

No. 102428,

(recognizing that the Ohio Supreme Court’s decision

in Barnhouse only applies to preclude the consecutive imposition of community control sanctions). In light of the conflict, we agreed to hear the matter en banc to clarify this

district’s black-letter law.2

{¶4} Before issuing the original panel decision, in light of newer developments in

the law impacting the issues as framed by Anderson, this court requested the parties to

brief whether

R.C. 2929.13(A) or 2929.41(A) or any other statutory provision allow for the consecutive imposition of community control sanctions, either with a prison term or without a prison term, pursuant to State v. Barnhouse,

,

,

, or State v. Anderson,

,

,

.

The supplemental briefing was sought in accordance with State v. Tate,

,

,

, ¶ 21, and because this court recognizes that

sentences not authorized by law are void. State v. T.M., 8th Dist. Cuyahoga No. 101194,

(Stewart, J., dissenting), citing State v. Simpkins,

,

,

, ¶ 20, and State v. Hooks,

,

(10th Dist. 2000); State v. Ocel, 7th Dist. Jefferson No. 08 JE 22,

, ¶ 2; State v. Keslar, 4th Dist. Hocking No. 98CA20,

, *17 (Nov. 17, 1999), citing State v. Bruce,

,

(12th Dist. 1994), and State v. Thomas,

,

(3d Dist. 1992). Both parties responded.

2The original announcement of decision, State v. Anderson, 8th Dist. Cuyahoga No. 102427,

, released December 10, 2015, is hereby vacated. This opinion is the court’s journalized decision in this appeal. {¶5} The issue posed here is whether a trial court may impose a term of residential

or nonresidential community control sanctions on one felony count, to be served

consecutively to a term of imprisonment imposed on another. We must answer that

question in the negative. The legislature has not authorized a trial court to impose

community control sanctions to be served consecutively to sanctions imposed on separate

counts, except in limited but expressly delineated circumstances that are inapplicable to

Anderson’s sentence. The original panel in our Anderson appeal followed Abernathy in

light of State v. Anderson,

,

,

,3 and,

after reviewing Anderson’s assigned errors, the panel acknowledged the overlooked

decision in Barnhouse.

{¶6} In State v. Anderson, the Supreme Court of Ohio did not directly deal with the

consecutive imposition of a community control sanction and a prison term.

Nevertheless, State v. Anderson reaffirmed an apparently forgotten limitation to a trial

court’s authority in sentencing. In State v. Anderson, the Ohio Supreme Court

unambiguously held that “‘the only sentence which a trial judge may impose is that

provided for by statute * * *.’” Id. at ¶ 12, citing State v. Beasley,

,

(1984), quoting Colegrove v. Burns,

, 438,

(1964); see also State v. Morris,

,

(1978),

3In light of the confusion that will inevitably follow from having to discuss multiple “State v. Anderson” cases, the Ohio Supreme Court’s decision will be referred to as “State v. Anderson,” while any reference to Anderson, 8th Dist. Cuyahoga No. 102427,

, our original majority opinion, will be denoted as such for the sake of clarity. citing Toledo Mun. Court v. State ex rel. Platter,

,

(1933) (“It

has long been recognized in this state that the General Assembly has the plenary power to

prescribe crimes and fix penalties.”); see also Wilson v. State,

(Ind. 2014), quoting Wilson v. State,

(Ind. 2013) (Robb, C.J.,

dissenting) (“sentencing is a creature of the legislature”; “courts are limited to imposing

sentences that are authorized by statute, rather than only being limited to sentences that

are not prohibited by statute.” (Emphasis sic.)).

{¶7} Appellate courts had all too often flipped that proposition of law on its head

and affirmed sentences under the rationale that the legislature had not specifically

precluded the imposed sentence, including the panel’s decision in Heidrick. See, e.g.,

State v. Anderson, 9th Dist. Summit No. 26640,

; Heidrick, 8th

Dist. Cuyahoga No. 96822,

(noting that nothing in the statute

precludes the imposition of the appealed sentence, and therefore, the conviction was

affirmed); see also State v. Ramsey, 6th Dist. Wood No. WD-04-004,

; State v. Meredith, 4th Dist. Athens No. 02CA5,

, ¶ 13. Therefore, the

State v. Anderson decision undermined the rationale supporting our decision in Heidrick.

Accordingly, the time was ripe to question the Heidrick outcome.

{¶8} With that background and analytical framework in mind, we can now turn to

the merits of the case, in which Marlo Anderson appeals the trial court’s imposition of

community control sanctions (two years of community control including an indefinite

term of confinement in a community-based correctional facility (“CBCF”)) on the identity fraud count, a felony of the fifth degree, to be served consecutively to a three-year

aggregate sentence of imprisonment (consecutive terms of one year on a firearm

specification and two years for robbery).

{¶9} Anderson was charged in pertinent part with three felonies, abduction,

robbery, and identity theft, for luring a victim into Anderson’s car and robbing him at

gunpoint. When the victim entered the car, Anderson and three accomplices took the

victim’s cell phone and bank card. One of the attackers used a Taser on the back of the

victim’s neck several times to torture the victim into divulging his PIN. The victim

finally relented, and the quartet proceeded to three separate ATMs where Anderson posed

as the victim to withdraw cash. When the attackers stopped at one of the ATMs, the

victim managed to escape. Anderson drove by the victim’s home in an attempt to find

him.

{¶10} Anderson filed the current appeal after pleading guilty and being sentenced.

Anderson first claims the trial court failed to “properly” consider the merger issue

regarding the robbery and abduction charges, arguing that his state of mind, or animus,

was never addressed. We can summarily dispose of his first argument. In this case, the

trial court determined that the acts constituting the robbery and those constituting the

abduction were committed with separate conduct. Because the acts were deemed to be

committed separately, no inquiry into the defendant’s animus was necessary. The Ohio

Supreme Court held that offenses cannot merge and the defendant may be convicted and sentenced

for multiple offenses: (1) [if] the offenses are dissimilar in import or

significance — in other words, each offense caused separate, identifiable

harm [or was committed against separate victims], (2) [if] the offenses were

committed separately, [or] (3) [if] the offenses were committed with

separate animus or motivation.

State v. Ruff,

,

,

. The merger

analysis was stated in the disjunctive: any one of the factors warrants separate

punishment. The trial court was not required to determine Anderson’s animus and did

not err by avoiding any discussion of Anderson’s “state of mind.”

{¶11} Anderson also challenges the imposition of a two-year term of community

control to be served consecutively to his three-year term of imprisonment — specifically

imposed by the trial court pursuant to R.C. 2929.14(C)(4). A mandatory three-year term

of postrelease control was also imposed. As already alluded to, we agree with

Anderson’s claim that the trial court was without authority to impose the residential and

nonresidential community control sanctions on felony counts to be served consecutively

to the prison term on the undisturbed counts. As a result, the community control

sanctions imposed on the identity fraud count, a felony of the fifth degree, are void as a

matter of law.

{¶12} The legislature must provide the trial court with authority to impose

community control sanctions to be served consecutive to a prison term imposed on a separate felony count. State v. Anderson,

,

,

. The first step of our analysis is to classify the community control sanctions

with respect to the statutory sentencing scheme. The community control sanctions in this

case include both residential and nonresidential sanctions. Unfortunately, we have to

analyze those sanctions differently. The residential sanctions, as will be discussed in

further detail, are sentences of imprisonment within the meaning of R.C. 2929.41(A) that

must be served concurrently due to the lack of an exception. Nonresidential sanctions

are not sentences of imprisonment, so the analysis on that issue hinges on the legislature’s

grant of authority to impose the nonresidential sanctions consecutive to a prison term

imposed on a separate count. State v. Anderson.

{¶13} For this reason, we begin our review with a discussion of the residential

sanction of CBCF and how those sanctions are impacted by the plain and ordinary

language codified in R.C. 2929.41. In Ohio, R.C. 2929.41 controls the trial court’s

authority to impose a prison or jail term, or other sentence of imprisonment consecutive to

another such term. R.C. 2929.41(A) provides:

Except as provided in division (B) of this section, division (C) of section

2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a

prison term, jail term, or sentence of imprisonment shall be served

concurrently with any other prison term, jail term, or sentence of

imprisonment imposed by a court of this state, another state, or the United

States. Except as provided in division (B)(3) of this section, a jail term or sentence of imprisonment for misdemeanor shall be served concurrently

with a prison term or sentence of imprisonment for felony served in a state

or federal correctional institution.

(Emphasis added.) There are only three exceptions to the concurrent service of jail or

prison terms or a sentence of imprisonment: (1) for misdemeanor sentences pursuant to

R.C. 2929.41(B); (2) for felony prison terms pursuant to R.C. 2929.14(C)(4); or (3) for

sentences for certain violent sex offenses pursuant to R.C. 2971.03.

{¶14} The first and third exceptions are inapplicable to the residential term

imposed at a CBCF. Neither party claims that R.C. 2971.03 is applicable, and R.C.

2929.14(C)(4) is limited to the imposition of consecutive “prison terms.” State v.

Alexander, 8th Dist. Cuyahoga No. 102708,

; State v. Maloney, 12th

Dist. Clermont No.CA99-01-006,

, *7 (Sept. 27, 1999);

State v. Kroger, 12th Dist. Clermont No. CA99-05-050,

(Apr. 3, 2000). “Prison” is defined as a residential facility used for the confinement of

convicted felony offenders under the control of the Department of Rehabilitation and

Correction. R.C. 2929.01(AA). On the other hand, “‘[c]ommunity control sanction’

means a sanction that is not a prison term and that is described” in sections 2929.15

through 2929.18 of the Revised Code. (Emphasis added.) R.C. 2929.01(E). A term of

confinement in a CBCF is a community control sanction. State v. Richmond, 8th Dist.

Cuyahoga No. 97531,

; R.C. 2929.16(A)(1). Courts are authorized

to impose CBCF and other residential sanctions as a community control sanction pursuant to R.C. 2929.16. As a result, residential community control sanctions are not prison

terms as statutorily defined and R.C. 2929.14(C)(4) is simply inapplicable.

{¶15} A term of residential sanctions cannot be imposed consecutive to a prison

term because as the Ohio Supreme Court recognized, residential sanctions are sentences

of imprisonment. Barnhouse,

,

,

; State v. Peterson, 8th Dist. Cuyahoga No. 102428,

(acknowledging that the Barnhouse decision precludes the imposition of consecutive

residential sanctions); Abernathy, 8th Dist. Cuyahoga No. 102716,

, ¶

8-10; Dansby-East, 8th Dist. Cuyahoga Nos. 102656, 102657, 102658, and 102659,

. There is no definition for “sentence of imprisonment” in the

Revised Code. R.C. 1.05(A) provides that “imprisoned” or “imprisonment” means being

“imprisoned under a sentence imposed for an offense * * * in * * * a community-based

correctional facility.” Serving a term in a CBCF is “imprisonment” as statutorily

defined.

{¶16} It stands to follow that the imposition of a term at a CBCF is a “sentence of

imprisonment.” Barnhouse. R.C. 2929.41(A) unambiguously provides that “a prison

term, jail term, or sentence of imprisonment shall be served concurrently with any other

prison term, jail term, or sentence of imprisonment imposed by a court of this state”

unless an exception applies. Because no exceptions in R.C. 2929.41(A) authorize the

consecutive service of a “sentence of imprisonment,” a term of imprisonment at a CBCF

cannot be imposed consecutive to a prison term. Abernathy; Dansby-East; Peterson. We acknowledge that the trial court imposed a six-month term at a CBCF during the

sentencing hearing, but in the final sentencing entry indicated the term at a CBCF was

indefinite. In light of the fact that we find no authority to impose any term at a CBCF to

be served consecutive to a prison term, correcting the record at this point in time would

be futile.

{¶17} The only remaining question is whether any nonresidential community

control sanctions pursuant to R.C. 2929.17 may be imposed consecutive to a prison term.

The state has not cited any section of the Revised Code authorizing the imposition of

consecutive nonresidential community control sanctions, or for authority for those

sanctions to take effect following an offender’s release from a prison term.

{¶18} The only notable, and express, exception to this lack of authority to impose

residential or nonresidential sanctions consecutive to a prison term on a separate count is

for certain OVI offenses. See R.C. 2929.15(A)(1). In that section, the legislature

expressly authorized the imposition of community control sanctions to be served upon the

offender’s release from the mandatory prison term when the sanctions are imposed on a

third- or fourth-degree felony OVI offense. R.C. 2929.15(A)(1), provides:

[I]n addition to the mandatory prison term or mandatory prison term and additional prison term imposed under that division, the court also may impose upon the offender a community control sanction or combination of community control sanctions under section 2929.16 or 2929.17 of the Revised Code, but the offender shall serve all of the prison terms so imposed prior to serving the community control sanction.

(Emphasis added.) Although another panel in this district cited R.C. 2929.15(A)(1) for

the proposition that an offender shall serve all prison terms imposed before serving any community control sanction, the legislature expressly limited application of that exception

to sentences imposed pursuant to divisions (G)(1) and (2) of section 2929.13 of the

Revised Code, for certain felony OVI offenses. State v. May, 8th Dist. Cuyahoga No.

97354,

. That portion of R.C. 2929.15(A)(1) had no

applicability to the sexual battery conviction underlying the May case and, more

importantly, has no applicability to the current facts of this case. Id. at ¶ 1. We were

wrong and now overrule May inasmuch as that panel concluded that R.C. 2929.15(A)(1)

authorizes all community control sanctions to commence after service of the prison term.

{¶19} Sections R.C. 2929.13 through 2929.17 are otherwise silent with respect to

imposing nonresidential sanctions to be served consecutively to prison terms. That

legislative silence is deafening. In the absence of an express grant of authority to order

the imposition of nonresidential sanctions to be served consecutive to prison terms, those

sanctions cannot be so imposed. State v. Anderson,

,

,

; see, e.g., R.C. 2929.15(A)(1) (demonstrating the

legislature’s knowledge of the language necessary to create authority for the imposition of

community control sanctions to be served after the offender is released from a prison or

jail term, or other sentence of imprisonment).

{¶20} Further, R.C. 2929.41 only addresses prison terms, jail terms, or sentences

of imprisonment. Nonresidential community control sanctions are not prison terms.

R.C. 2929.01(E). They are also not jail terms. R.C. 2929.01(S) (“jail term” means a

term in a jail that is imposed pursuant to R.C. 2929.24 and 2929.25, both of which pertain to misdemeanor sentencing). Because nonresidential sanctions are not prison or jail

terms, the facts of this case do not involve R.C. 2971.03, and because the state provided

no statutory authority for the imposition of nonresidential community control sanctions to

be served consecutively to other sentences of imprisonment, Anderson’s sentence on the

identity fraud count is void.

{¶21} Our previous decisions consistently overlooked the implications of

Barnhouse, and therefore, we can no longer rely on any of those previous decisions to

authorize the sentence at issue. As the state notes, courts have routinely held that

community control sanctions on one count can be imposed consecutively to a prison term

on another. See, e.g., State v. Kinder, 5th Dist. Delaware No. 03CAA12075,

; Purvis, 8th Dist. Cuyahoga No. 101608,

;4 Heidrick,

8th Dist. Cuyahoga

; State v. Leedy, 4th Dist. Meigs Nos.

13CA7 and 13CA8,

, ¶ 7-8, citing Heidrick at ¶ 8-9; State v. Randolph,

12th Dist. Butler No. CA2003-10-262,

; State v. Ramsey, 6th Dist.

Wood No. WD-04-004,

. The rationale in all those cases relied on

the proposition that the legislature had not prohibited the imposition of consecutive

community control sanctions, and therefore, the courts concluded that the trial court then

possessed the authority to impose the particular sentence. That inverted rationale was

4In addition and for a more basic reason, we can no longer follow the proposition of law set forth in Purvis — that consecutive residential sanctions pursuant to R.C. 2929.16 can be imposed on multiple felonies. The Purvis panel relied on State v. Barnhouse, 4th Dist. Athens No. 02CA22,

, for a proposition of law subsequently overturned by the Ohio Supreme Court. Barnhouse,

,

,

. overruled in State v. Anderson and demonstrates why we can no longer rely on our

decisions in Heidrick.

{¶22} The only other analysis supporting the Heidrick line of decisions was that

R.C. 2929.13(A) provides that a court that imposes “a sentence upon an offender for a

felony may impose any sanction or combinations on the offender.” (Emphasis added.)

Heidrick at ¶ 7; see also State v. Santiago, 8th Dist. Cuyahoga No. 102433,

(a combination of sanctions can be imposed on an individual

felony count and noting that the defendant did not challenge the imposition of community

control sanctions to be served consecutive to the prison term); State v. Martin, 8th Dist.

Cuyahoga No. 100723,

(relying on the flawed precedent from State

v. May affirming consecutive service of community control sanctions on separate counts);

State v. Carswell, 8th Dist. Cuyahoga Nos. 101313 and 101314,

, ¶ 8 (also

relying on Martin and May). R.C. 2929.13(A), however, is limited to authorizing the

imposition of a combination of sanctions on a singular felony offense and is silent as to

imposing consecutive service of community control sentences upon multiple felonies.

Barnhouse at ¶ 15; State v. Saxon,

,

,

,

¶ 9; Peterson, 8th Dist. Cuyahoga No. 102428,

. R.C.

2929.13(A), 2929.15(A)(1), 2929.16, and 2929.17 employ similar language authorizing

trial courts to impose a combination of community control sanctions for a single “felony

offense.” Peterson. As the Ohio Supreme Court noted in Barnhouse, the legislature’s

indication that a combination of sanctions may be imposed for a felony offense is immaterial to resolving whether the sanctions can be imposed consecutively to one

another. Barnhouse,

,

,

. In

light of the similarity of the language carried throughout the pertinent sentencing statutes,

we see no reason to limit the Barnhouse decision solely based on the court’s analyzing

R.C. 2929.16 alone. Authorizing the combination of community control sanctions for a

single felony offense is not authorization to impose consecutive service of those sanctions

imposed on multiple felonies under a plain reading of the language. Id.; Peterson.

{¶23} Finally, although not relevant, we note that any reliance on R.C. 2951.07

and 2929.141 to support the trial court’s authority to impose consecutive community

control sanctions would be misplaced. Each section addresses how a sentence is

executed, not how it is imposed in the first instance. R.C. 2929.141(A) provides:

Upon the conviction of or plea of guilty to a felony by a person on post-release control at the time of the commission of the felony, the court may terminate the term of post-release control, and the court may [as one of two options], * * * [i]mpose a sanction under sections 2929.15 to 2929.18 of the Revised Code for the violation that shall be served concurrently or consecutively, as specified by the court, with any community control sanctions for the new felony.

R.C. 2929.141 deals with penalties for the violation of postrelease control and has no

applicability to sentencing offenders for the first time. We need not discuss that section

further, although it is noteworthy that the legislature is well aware of the language

required to authorize the consecutive imposition of community control sanctions. R.C.

2951.07, in turn, provides as follows: A community control sanction continues for the period that the judge or

magistrate determines and, subject to the five-year limit specified in section

2929.15 or 2929.25 of the Revised Code, may be extended. If the offender

under community control absconds or otherwise leaves the jurisdiction of

the court without permission from the probation officer, the probation

agency, or the court to do so, or if the offender is confined in any institution

for the commission of any offense, the period of community control ceases

to run until the time that the offender is brought before the court for its

further action.

(Emphasis added.) R.C. 2951.07.

{¶24} For the sake of argument, we will presume the possibility that the second

sentence of R.C. 2951.07 could be read as the legislative grant of authority to support the

trial court’s decision, in a final sentencing entry, to order the community control sanctions

to be served following the offender’s release from prison. The argument would then

follow that if the community control period ceases to run upon the offender’s

confinement, the trial court could impose community control sanctions to be served

following the offender’s release from prison by simply imposing both confinement and

community control sanctions simultaneously through operation of R.C. 2951.07.

{¶25} There is an inherent flaw with that argument. R.C. 2951.07 applies to all

sentences involving community control sanctions, whether imposed upon multiple counts

or as a combination of sanctions on a single felony count. We need to approach our analysis with that in mind. If we interpreted R.C. 2951.07 as the legislative authority for

the imposition of community control sanctions to be served following an offender’s

release from a prison term in this case, or as authority supporting the imposition of

consecutive service of those sanctions, we would cause inextricable conflicts with other

statutory sections.

{¶26} For example, R.C. 2929.15(A)(1) is a specific grant of authority to impose

community control sanctions to be served following an offender’s release from a prison

term imposed on a felony OVI conviction. If we were to read R.C. 2951.07 as providing

authority to impose all community control sanctions to be served following an offender’s

release from any jail or prison term, or other sentence of imprisonment in general, the

language in R.C. 2929.15(A)(1) would be superfluous because R.C. 2951.07 as a general

grant of authority would subsume the more limited grant of authority in R.C.

2929.15(A)(1).

{¶27} The Ohio Supreme Court recently provided guidance on resolving this type

of seemingly contradictory, statutory language. State v. Polus, Slip Opinion No.

. In that case, the trial court imposed a jail term on a misdemeanor

offense to be served consecutively to a prison term imposed on the felony offense

pursuant to R.C. 2929.41(B)(1). The appellate court affirmed, claiming an ambiguity in

the statute because R.C. 2929.41(A) contained two pertinent exceptions to concurrent

service of a sentence of misdemeanor imprisonment, one for misdemeanor offenses in

general, imposed pursuant to R.C. 2929.41(B)(1), and another more specific provision referencing misdemeanor violations of R.C. 4510.11, 4510.14, 4510.16, 4510.21, or

4511.19 imposed to be served consecutively to convictions under R.C. 2903.04, 2903.06,

2903.07, 2903.08, or 4511.19. There was no dispute that the more specific subdivision

was not applicable, so the trial court’s only authority to impose consecutive service was

through R.C. 2929.41(B)(1), in which the lower courts determined that the legislature

intended a general grant of authority for all misdemeanor sentences.

{¶28} As the Ohio Supreme Court determined, the lower courts’ interpretation —

that R.C. 2929.41(B)(1) authorized consecutive service of all misdemeanor sentences in

general — caused the more specific provision of R.C. 2929.41(B)(3) to be superfluous

because the more general rule of subdivision (B)(1) subsumed the limited exception to

concurrent sentencing delineated in division (B)(3). Polus at ¶ 11-12. Courts must

presume that all statutory language was inserted for a reason.

In order to give

meaning to R.C. 2929.41(B)(3), application of the exception provided in R.C.

2929.41(B)(1) was also limited to certain enumerated misdemeanors instead of being

interpreted as a general exception.

{¶29} In this case, therefore, we cannot read R.C. 2951.07 as authorization for the

trial court’s imposition of any community control sanctions to be served following the

offender’s release from any prison or jail term. In doing so, we would be rendering the

more specific language of R.C. 2929.15(A)(1) superfluous. If R.C. 2951.07 is read to

authorize in the general sense that which R.C. 2929.15(A)(1) did in the more limited and

specific sense, there would be no need for the limited express grant of authority. {¶30} Thus we can only conclude that the legislature limited the trial court’s

authority — to impose community control sanctions to be served following the offender’s

release from a prison term — to certain felony offenses. R.C. 2929.15(A)(1); Anderson

(“absent an express exception, the court must impose either a prison term or a

community-control sanction or sanctions” on an individual felony, although the

combination of sanctions in R.C. 2929.13(A) was not discussed); but see Peterson, 8th

Dist. Cuyahoga No. 102428,

(R.C. 2929.15 authorizes the trial

court to generally impose a combination of community control sanctions on a single

felony count). R.C. 2951.07 is, therefore, a statute that guides courts on the execution of

community control sanctions, not the imposition of those sanctions. As such, the

statutory section is irrelevant to determining the limitations placed on a trial court’s

authority to impose community control sanctions to be served following the offender’s

release from a prison term imposed on a separate count.

{¶31} In light of the foregoing, we must vacate Anderson’s conviction as it

pertains to the community control sanctions imposed on the identity fraud count based on

our analysis from Abernathy, Dansby-East, and Peterson. Because there is no statutory

authority for the imposition of community control sanctions to be served consecutive to,

or following the completion of, a prison or jail term or other sentence of imprisonment,

the trial court was without authority to impose the same. The sentence imposed on the

identity fraud count is void and must be vacated. {¶32} Anderson’s sentence on the identify theft is vacated, and the case is

remanded for resentencing on that count alone. Anderson’s conviction for robbery and

abduction is otherwise affirmed.

It is ordered that appellant and appellee share costs herein taxed. The court

finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., J., EILEEN T. GALLAGHER, J., LARRY A. JONES, SR., A.J., KATHLEEN ANN KEOUGH, J., and TIM McCORMACK, J., CONCUR MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY

MARY J. BOYLE, J., DISSENTS WITH SEPARATE OPINION

PATRICIA ANN BLACKMON, J., EILEEN A. GALLAGHER, J., MARY EILEEN KILBANE, J., and ANITA LASTER MAYS, J., CONCUR WITH THE SEPARATE DISSENTING OPINION

MARY J. BOYLE, J., DISSENTING: {¶33} I respectfully dissent. Consistent with my dissenting opinion in the original

panel decision, and as this court and several other districts have long held, I would answer

the en banc question in the affirmative — that is, I would hold that a trial court has the

discretion and the authority to impose a prison term on one felony offense and community

control sanctions on a separate felony offense, and order the community control sanctions

commence upon the defendant’s release from prison.

{¶34} When choosing an appropriate sentence, trial courts must first consider R.C.

2929.11, which sets forth the overriding purposes and principles of felony sentencing.

R.C. 2929.11(A) states:

A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.

(Emphasis added.)

{¶35} Under R.C. 2929.12, a court retains discretion to determine the most

effective way to comply with the purposes and principles of sentencing. In exercising

this discretion, the court is required to consider a series of factors that pertain to the

seriousness of the offense and the recidivism of the offender. These factors include the

injuries suffered by the victim, the motivations of the offender, the offender’s prior

convictions, the offender’s remorse, and any mitigating factors.

{¶36} The defendant in this case, Anderson, was young — only 22 years old — at

the time of sentencing. At the sentencing hearing, the trial court heard from his

probation officer who informed the court that Anderson had failed several drug tests, did

not comply with his outpatient drug treatment program, or verify that he had attended

GED classes. Anderson’s father and mother also spoke to the court. Anderson’s father

told the court that he spent many years of his life having substance abuse issues, and

blamed himself for many of Anderson’s problems. Anderson’s mother informed the

court that Anderson had a learning disability and said that she attempted to help Anderson

attend his AA meetings. Anderson stated that being in jail for 197 days on this case was

“eye-opening,” and that he learned he wanted to get his life together and be a more

productive member of society.

{¶37} The following took place at Anderson’s sentencing hearing:

THE COURT: With regard to * * * the identity fraud offense, Count 8, that is a felony of the fifth degree. I’m going to run that consecutive to the robbery and abduction, and I’m going to order you to be on probation for that charge.

I’m going to have you — when you’re released from prison, you’re going to come back and be placed in the CBCF facility for a six-month period. CBCF is a confinement facility next to the post office in downtown Cleveland. It is not a jail. It is not a prison. It is a bunk bed facility that has about 150 to 200 men where you will get drug treatment training, you will get GED schooling, you will get training for Thinking For a Change. In other words, making better decisions about yourself and you will do that in a confinement setting, but very different than prison or jail.

You will be allowed to be released from that facility after you do three months, if you have done everything properly. You will have to return there in the evening to stay overnight, but you will be back out in the community during the day to either take care of your business or take care of working or start working, but you will come back during the evening and stay there until you complete your stay. It is a maximum of six months. For many people it is three months to six months.

Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: You need to have some of these issues addressed, and this is the proper way to do that. If you get that treatment in prison, great, but you’re going to at least have a program where if it doesn’t happen there, it will happen at the CBCF. You will be placed on probation for a two-year time period.

You will also be on post-release control at the same time, so I’m not adding anything more to that. It will be part of that same sentence. I’m sentencing you to a total of three years, one with the gun specification and two with the robbery, because your conduct that night is such that it is very serious.

I know you’ve got issues, and I’m trying to address those issues, but it’s important to address the conduct, and I’m trying to match the conduct with what I think is the appropriate sentence and to make it as minimum a sentence that I could impose that deals with the nature of your conduct.

You have a lot of family support. You’re going to need that family

support. I expect that they will continue to be with you during that time

period and help you through this process.

{¶38} After reviewing what occurred at the sentencing hearing, it is clear that the

trial court was attempting to appropriately punish Anderson for his conduct in committing

the offenses and protect the public, while at the same time attempting to rehabilitate a

22-year-old offender so that he could become a more productive and law-abiding citizen

after he served his sentence. Notably, the trial court imposed a sentence using the

minimum sanctions it deemed necessary — as it was required to do. The majority’s en banc decision, however, essentially removes a trial court’s sentencing discretion, which is

counterintuitive and against the overriding purposes and principles of felony sentencing

under R.C. 2929.11.

{¶39} The en banc majority asserts that the trial court could accomplish its “noble

purpose of ensuring Anderson would stay on a path to rehabilitation” if the common pleas

court and the department of corrections entered into an agreement under the provisions

set forth in R.C. 2967.29. R.C. 2967.29(A) provides:

A court of common pleas may cooperate with the department of rehabilitation and correction in the supervision of offenders who return to the court’s territorial jurisdiction after serving a prison term. The court, after consultation with the board of county commissioners, may enter into an agreement with the department allowing the court and the parole board to make joint decisions relating to parole and post-release control to the extent permitted by section 2967.28 of the Revised Code.

{¶40} I disagree that the trial court could accomplish its “noble” goal if the court

and the department of corrections entered into an agreement pursuant to R.C. 2967.29.

This provision relates to “parole and postrelease control.” Neither the court nor the

parole board can impose a term in a CBCF as part of a defendant’s postprison monitoring.

But if a court sentences a defendant to community control sanctions that includes three

to six months in a CBCF, it is only common sense that the odds a defendant would break

his or her addiction would greatly increase. Thus, I disagree that a court could

accomplish the same “noble” goal through postrelease control.

{¶41} In State v. Heidrick, 8th Dist. Cuyahoga No. 96822,

, the

certified intradistrict conflict case, this court was faced with nearly an identical set of facts. The trial court sentenced Heidrick to five years in prison on one felony count and

one year of community control sanctions on another felony count, and ordered

“community control to commence upon release from prison.” Id. at ¶ 3. The trial court

further ordered, among other things, that as part of Heidrick’s community control

sanctions, he be screened for placement in the Northwest Community Based Correctional

Facility for up to six months.

{¶42} We explained in Heidrick that R.C. 2929.13(A), which states “a court that

imposes a sentence upon an offender for a felony may impose any sanction or

combination of sanctions on the offender that are provided in sections 2929.14 to 2929.18

of the Revised Code,” provides a trial court with discretion to impose a prison term for

one offense and community control sanctions for a separate offense. Id. at ¶ 7-8, citing

State v. Randolph, 12th Dist. Butler No. CA2003-10-262,

; State v.

Aitkens, 8th Dist. Cuyahoga Nos. 79851 and 79929,

; and State v.

Molina, 8th Dist. Cuyahoga No. 83166,

. We went on to hold in

Heidrick that “[t]he trial court may also order that the sentence of community control * *

* begin upon the accused’s release from prison.” Id. at ¶ 8, citing State v. Ramsey, 6th

Dist. Wood No. WD-04-004,

; State v. Kinder, 5th Dist. Delaware

No. 03CAA12075,

.

{¶43} This court has recently reaffirmed the same holding — that a trial court has

the discretion under R.C. 2929.13(A) to impose a prison term on one felony offense and

community control sanctions on another felony offense, and order that the community control sanctions commence upon completion of the prison term. See State v. Santiago,

8th Dist. Cuyahoga No. 102433,

(upheld a sentence that included a

prison term for one offense and a “jail term, CBCF, and community control sanction” on

another offense, with community control sanctions beginning once the defendant was

released from prison). See also State v. Martin, 8th Dist. Cuyahoga No. 100723,

; State v. Carswell, 8th Dist. Cuyahoga Nos. 101313 and 101314,

; State v. May, 8th Dist. Cuyahoga No. 97354,

; and State

v. LaSalla, 8th Dist. Cuyahoga No. 99424,

. We noted in Martin and

Carswell that although a trial court cannot impose both a prison sentence and community

control sanctions for the same offense, it may do so for separate offenses, and it may

order the community control sanctions to commence upon the defendant’s release from

prison.5 Martin at ¶ 8-9; Carswell at ¶ 8.

{¶44} Other districts have also held that a trial court may impose a prison term on

one offense and community control sanctions on another offense and order the

community control sanctions to commence when the offender is released from prison.

See State v. Leedy, 4th Dist. Meigs No. 13CA7 and 13CA8,

; State v.

Meredith, 4th Dist. Athens No. 02CA5,

; State v. Kinder, 5th Dist.

Delaware No. 03CAA12075,

; State v. O’Connor, 5th Dist. Delaware

No. 04CAA04-028,

; State v. Boylen, 5th Dist. Tuscarawas No.

5The offenses in Martin and Carswell were felonies. 2012AP060039,

; State v. Ramsey, 6th Dist. Wood No. WD-04-004,

; and Randolph.

{¶45} It is my view that the holding in State v. Barnhouse,

,

,

, is limited to prohibiting trial courts from “impos[ing]

consecutive jail sentences.”

at the syllabus. Under Ohio’s sentencing statutes, trial

courts can only impose jail sentences for misdemeanor offenses or as part of a community

control sanction.

{¶46} It is also my view that State v. Anderson,

,

,

, is not applicable to the issues raised in this case. The

Ohio Supreme Court held in Anderson that “[a] trial court cannot impose a prison term

and a no-contact order [which is a community control sanction] for the same felony

offense.” (Emphasis added.) Id. at ¶ 1. Thus, it is my view that the en banc majority

applies the dicta in Anderson,

,

,

, too

broadly.

{¶47} I further believe that the holding in the majority en banc decision, vacating

Anderson’s sentence for the identity fraud count, essentially removes the trial court’s

sentencing discretion. When sentencing Anderson for identity fraud, the trial court had

the option of either sentencing him to prison or community control sanctions. If the en

banc majority’s interpretation is correct, then any community control sanctions that the

trial court imposed would have to be served concurrent to the prison term. But if

Anderson is in prison, he would not be able to serve his community control sanction — rendering both the purposes and principles of sentencing under R.C. 2929.11(A) and the

trial court’s discretion under R.C. 2929.13(A) meaningless.

{¶48} Additionally, the majority en banc decision’s approach eliminates a trial

court’s discretion to impose community control sanctions on a separate felony count but

would leave intact the trial court’s authority to impose a prison term on that same count

and order the prison term consecutive to the other felony counts (provided the trial court

complies with the consecutive sentence findings under R.C. 2929.14(C)(4)). Such an

approach also directly contravenes R.C. 2929.11 and the General Assembly’s directive

that trial courts use “the minimum sanctions” necessary to accomplish the purposes and

principles of felony sentencing. I cannot agree that any decision from the Ohio Supreme

Court sought to eliminate a trial court’s discretion and authority to impose a less

restrictive sanction on a separate felony count.

{¶49} Moreover, it is axiomatic that an offender cannot serve a sentence of

community control sanctions while in prison. Thus, community control sanctions must

begin when an offender is released from prison. Because of this, it is my view that a

trial court need not even use the words “consecutive” or “concurrent” when sentencing an

offender to prison on one felony offense and community control sanctions on a separate

felony offense because community control sanctions cannot commence until the offender

is released from prison.

{¶50} I fear that the holding in the en banc majority decision will have far reaching

effects in removing a trial court’s discretion when sentencing a defendant. For example, under the en banc majority’s decision, trial court judges will no longer be able to sentence

defendants to prison for an offense in one case and to community control sanctions for an

offense in a separate case, as the trial court judge in Molina did. See

8th Dist.

Cuyahoga No. 83166,

(defendant was charged with drug trafficking in

January 2001; while that case was still pending, defendant was charged with drug

trafficking in another case; trial court sentenced defendant to six months in prison for the

first case and “consecutive four years” of community control sanctions for the second

case). Nor will a trial court judge be able to sentence a defendant to community control

sanctions for an offense and order that it commence after the defendant completes a

prison sentence for a separate case in another county, or state for that matter. There are

endless scenarios where trial court judges will now lose their ability to sentence

defendants within their sound discretion — because although the sentencing statutes

cannot address every possible situation (and thus, are silent on the matter), it simply

would not make sense to interpret the law any other way.

{¶51} Thus, based on well-established law in this district and others, I would

answer the en banc question (and the issue raised sua sponte by this court) in the

affirmative, and hold that a trial court has the authority to impose a prison term on one

felony offense and community control sanctions on a separate felony offense, and order

the community control sanctions commence upon the defendant’s release from prison.